Constitutional Law I, Pages 178–185

United States v. Lopez

Supreme Court of the United States, 1995


Lopez, a 12th-grade student, brought a handgun to school. He was at first charged under Texas law with firearm possession on school premises, but the charges were dropped the next day after federal agents charged him with violating the federal Gun-Free School Zones Act of 1990.

Procedural History:

  • Lopez was convicted of violating the act and sentenced to six months' imprisonment and two years' supervised release.

  • Court of appeals reversed, finding that the act banning firearms in schools exceeded Congress' power under the commerce clause to regulate interstate commerce.


Does Congress' power to regulate interstate commerce allow it to ban firearms in schools?


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"The Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence."

Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power.

  1. First, Congress may regulate the use of the channels of interstate commerce.
  2. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.
  3. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce.


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    The first two categories of authority may be quickly disposed of: § 922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can § 922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce.

  • This act has nothing to do with commerce, no matter how broadly one defines it. There is not larger regulation of economic activity that this is an essential part of. It is just a criminal statute. Thus, it cannot be sustained as a regulation of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

    This act has no element which would ensure that it affects interstate commerce nor which might limit its reach to a set of possessions that have an explicit connection with interstate commerce.

    Congress did not give any findings of how regulating firearms would affect the economy. The government now claims that it is valid because firearms could result in violent crime which in turn could cause insurance rates to rise and reduce the willingness of individuals to travel to unsafe states and because guns in schools could harm th educational process which would affect the nation's well-being. It argues that these are sufficient rational reasons to conclude that it substantially affects interstate commerce.

    This reasoning would mean that the government could regulate all activities that might lead to violent crime or affect national productivity, no matter how tenuously they relate to interstate commerce. It is difficult to think of any area of law which the federal government would not have power over under such reasoning.

    While determining whether an activity is commercial or noncommercial may lead to some legal uncertainty, such uncertainty will always result from trying to draw the line on Congress' police power exercisable under the Commerce Clause. There's no other way which would be precise.


No, regulating firearms in school zones is not regulating interstate commerce. Affirmed.

Concurring Opinion:

Thomas: While this is not regulating interstate commerce, the case law used now is far from the original understanding of the Commerce Clause. It should be tempered to make sense of recent cases and become more faithful to the original meaning.

It has been said that the Commerce Clause gives Congress power over anything that has a "substantial effect" on such commerce. Taken to its logical extreme, this would give Congress a "police power" over everything. The Court has never come to grips with this implication however.

When the Constitution was ratified, "commerce" only meant buying, selling, and trading, not the production of goods. The Constitution also does not state that Congress can regulate things that "substantially affect" commerce. If it did, almost the entirety of the rest Article I, § 8 would be entirely redundant. Yet this is what has been endorsed as the proper interpretation.

Neither the government nor the dissent can name even a single thing that the federal government could not regulate under the substantial effects test, partially because of its "aggregation principle." Allowing Congress to regulate activities that are neither interstate nor commerce because the class of activities as a whole affects interstate commerce leads to having no limit on Congress' power. One can always make an act broader. According to the case law Congress could constitutionally pass a single bill that regulated everything in existence as long as it in the aggregate regulates things that substantially affect commerce. This must be modified if the Constitution is to be followed in not ceding a police power to the federal government.

Dissenting Opinions:

  • Souter: The courts should defer to Congress' judgment "if there is any rational basis for" finding that it addresses a subject substantially affecting interstate commerce. Congress is competent on the things of the Constitution and if it makes bad laws, it will be held politically accountable.

  • Breyer: Banning firearms from school zones is well within the scope of regulating interstate commerce. As the Court has held, it does not actually have to regulate interstate commerce, Congress just has to have had "a rational basis" for concluding so. Congress might have had this.

    Violence inhibits education, so Congress could have concluded that guns make it impossible to learn. Education is also important for business. Therefore, guns in schools threaten the industries which the schools' students will eventually enter.

    Congress could also have concluded that this is a "substantial" link because it would cause the students who missed out on their educations to enter low-paying jobs and also because it harms the communities near the schools guns hurt because they can no longer obtain a well-educated work force. It is therefore a rational conclusion that guns in schools has an adverse impact on interstate commerce.


Congress has the authority to regulate any economic activity which in the aggregate has a substantial effect on interstate commerce.